Michael P. Maslanka

Michael P. Maslanka is managing partner of the Dallas office of Constangy, Brooks & Smith. His e-mail address is mmaslanka@constangy.com. He is board certified in labor and employment law by the Texas Board of Legal Specialization. He writes the “Work Matters” column for Texas Lawyer’s In-House Texas publication and records labor and employment podcasts that can be found at www.texaslawyer.com.

August 2012

August 07, 2012

I am a big fan of Harry Beckwith, so I enjoyed re-reading "You, Inc: The Art of Selling Yourself," which he co-wrote with Christine Clifford Beckwith. One piece of advice: If you want to improve, get others’ input.

But how do you go about doing that? They write that asking someone, "What am I doing wrong?" will not prompt a useful response. Most people don’t like to be criticized directly, so they refrain from doing it to others.

The authors suggest two better options to get at the information:

"What could I do to be even more effective?" or

"I think this might work, but I value your opinion. What might work even better?"

August 06, 2012

Want influence? You won't find it in knowing the right answers but in asking the right questions. Questions are powerful.

Listen to this from William Martin's “The Sage's Tao Te Ching: Ancient Advice For The Second Half of Life”:

Some see answers as strongand questions as weak.Successful politicians have all the answers.But I tell you the truth:the happy person is not the onewith all the answers.Each new question is an affirmationof the delight of living.What new question have you discovered today?

Here is one to use in business or in planning your career: "What has to prove true for [insert goal] to work?" Or, a variation: "What are the assumptions that have to prove true in order for me to be able to succeed in this assignment?" Or, try this when making projections: "What are the most important assumptions that have to prove right for these projections to work, and how will we track them?"

Following their advice puts the emphasis where it should be: determining the assumptions first and the results second, not the results first and the assumptions second. Perhaps doing things this way is not as much fun, but it is a lot more useful.

August 03, 2012

Like Columbus, I was looking for one thing but found another. I stumbled across this unknown gem of a legal theory: The equal protection clause of the 14th Amendment protects gay employees who work for public employers.

Let me distill it down from the 10 or so reported cases: Sexual orientation is not a suspect class, but gay people constitute an identifiable group entitled to at least the same protection as any other identifiable group that is subject to disparate treatment by the state. So, a gay person who does not get a promotion, allegedly because of her sexual orientation, has a claim. (By the way, one case extends 14th Amendment protections to people treated adversely because of others’ mistaken beliefs that they are gay.)

Are there any constitutional defenses? Well, state action is subject to a rational basis review; that is, the state wins the suit if it has a rational reason to treat an employee differently because of his sexual orientation.

True, that’s a stretch, but read Schroeder v. Hamilton School District, a 2002 case from the 7th U.S. Circuit Court of Appeals. Here is the skinny from the opinion: Middle school students harass a long-term teacher who has a mental breakdown and resigns from teaching. The principal puts out a memo to all students saying that everyone must be treated with respect regardless of gender or race but omits sexual orientation. The teacher sues, the district court grants summary judgment and the 7th Circuit affirms by a 2-1 vote. Judge Richard A. Posner writes in a concurrence that it is possible for a rational school administrator to fear that including sexual orientation in the memo would highlight homosexuality and that the children would become preoccupied with sex.

Like I say, this is a little-developed claim. But there it is.

It's not what you don't know that hurts you, it's what you think is so that isn't.